During pendency of a lawsuit one of the attorneys fires his "right hand"
secretary or legal assistant, with bad feelings existing between the attorney and the
fired legal assistant. The former legal assistant soon takes employment as a
secretary/legal assistant at the opposing law firm. Both firms are small firms, with less
than five lawyers.

Question Presented

Should the new law firm where the legal assistant has taken employment, be disqualified
from further representation of a party adverse to the former employer's client?

"With respect to a non-lawyer employee retained by or associated with a lawyer:

a lawyer having direct supervisory authority over the non-lawyer shall make reasonable
efforts to ensure that the person's conduct is compatible with the professional
obligations of the lawyer; and

a lawyer shall be subject to discipline for the conduct of such a person that would be a
violation of these rules if engaged in by a lawyer if:

the lawyer orders, encourages or permits the conduct involved; or

the lawyer:

i. is a partner in the law firm in which the person is employed, retained by, or
associated with; or is the general counsel of a governmental agency's legal department in
which the person is employed, retained by, or associated with; or has direct supervisory
authority over such person; and

ii. with knowledge of such misconduct by the non-lawyer knowingly fails to take
reasonable remedial action to avoid or mitigate the consequences of that person's
misconduct.

The Comment under Rule 5.03 provides:

"Lawyers generally employ assistants in their practice, including secretaries,
investigators, law student interns, and health professionals. Such assistants act for the
lawyer in the rendition of the lawyer's professional services. A lawyer should give such
assistants appropriate instruction and supervision concerning the ethical aspects of their
employment, particularly regarding the obligation not to disclose the information relating
to representation of a client, and should be responsible for their work product. The
measures employed in supervising non-lawyers should take account of the fact that they do
not have legal training and are not subject to professional discipline. Each lawyer in a
position of authority in a law firm or in a government agency should make reasonable
efforts to ensure that the organization has in effect measures giving reasonable assurance
that the conduct of non-lawyers employed or retained by or associated with the firm or
legal department is compatible with the professional obligations of the lawyer. This
ethical obligation includes lawyers having supervisory authority or intermediate
managerial responsibilities in the law department of any enterprise or government
agency."

While the old DR 9-101 required attorneys to avoid
the appearance of impropriety and the old DR 4-101
encouraged lawyers to avoid any likelihood of public suspicion of the legal profession and
the case law generally requires disqualification to avoid the appearance of impropriety
because of conflicts of interest, the new Rules do not require automatic disqualification
to avoid the appearance of impropriety. However, Rule 5.03 specifically requires a
non-lawyer's supervising lawyer to make reasonable efforts to ensure that the non-lawyer
conduct is compatible with the professional obligations of the lawyer, where the lawyer
could be subject to discipline for the conduct of such lay person. Thus, the non-lawyer's
supervising lawyer must ensure that Rule 1.05 concerning client confidences, Rule 1.06
concerning conflicts of interest, and Rule 1.09 concerning former client conflicts of
interest must be fully complied with.

Conclusion

If the supervising lawyer of the legal assistant or secretary complies with Rule 1.05 concerning client confidences, complies with Rule 1.06 concerning conflicts of interest, and complies
with Rule 1.09 concerning former client-conflicts of
interest, so as to ensure the non-lawyer's conduct is compatible with the professional
obligations of a lawyer, then the new law firm is not ethically required to disqualify the
new law firm, under the Disciplinary Rules, from representation of a party adverse to the
former employer's client.